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United States v. Shaw

United States District Court, E.D. Texas, Sherman Division

July 19, 2019

UNITED STATES OF AMERICA
v.
GREGORY KIRK SHAW

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          KIMBERLY C. PRIEST JOHNSON UNITED STATES MAGISTRATE JUDGE.

         Pending before the Court is the Government's request for revocation of Defendant's supervised release. After the District Court referred the matter to this Court for a report and recommendation, the Court conducted a hearing on July 15, 2019, to determine whether Defendant violated his supervised release. Defendant was represented by Denise Benson. The Government was represented by Kevin McClendon.

         On February 20, 2008, Defendant was sentenced by the Honorable Richard A. Schell, United States District Judge, to a sentence of one hundred ninety (190) months imprisonment followed by a five (5) year term of supervised release for (1) Conspiracy to Distribute or Possess with Intent to Distribute or Dispense 3, 4Methylenedioxy-methamphetamine (“Ecstasy”) and Marijuana, Cocaine and Cocaine Base and (2) Carrying or Possession of a Firearm During, in relation to, and in Furtherance of a Drug Trafficking Crime. On April 7, 2011, Defendant's sentence was amended to one hundred thirty (130) months imprisonment followed by a five (5) year term of supervised release for Conspiracy to Distribute or Possess with Intent to Distribute or Dispense 3, 4Methylenedioxy-methamphetamine (“Ecstasy”) and Marijuana, Cocaine, and Cocaine Base.

         On April 8, 2019, the U.S. Probation Officer filed a Petition for Warrant or Summons for Offender under Supervision (the “Petition”) (Dkt. 185). The Petition asserts that Defendant violated the following conditions of supervision: (1) Defendant shall not commit another federal, state, or local crime; (2) Defendant shall refrain from any unlawful use of a controlled substance; (3) Defendant shall report to the probation officer and shall submit a truthful and complete written report within the first five days of each month; (4) Defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer; (5) Defendant shall work regularly at a lawful occupation, unless excused by the probation officer for schooling, training, or other acceptable reasons; (6) Defendant shall notify the probation officer at least ten days prior to any change in residence or employment; and (7) Defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer. At the hearing the Government stated they would dismiss allegation 1.

         The Petition asserts that Defendant violated the remaining conditions (2-7) because: (1) on April 25 and May 8, 2017, Defendant submitted urine specimens that tested positive for marijuana, confirmed by Alere Toxicology Services; (2) Defendant failed to submit monthly supervision reports as instructed during the months of October, November, and December 2017; January, February, and March 2018; and March 2019; (3) on February 26, 2019, Defendant failed to meet with the probation officer for a scheduled office visit; (4) Defendant informed the probation officer on July 18, 2017, that he had obtained employment at TNT carwash, but on August 29, 2017, the probation officer visited TNT carwash and was informed that Defendant was never employed by the business, (5) on January 24, 2019, the probation officer attempted to make contact with Defendant at his listed place of employment, but a human resources employee at the company stated Defendant was not employed with the company and thus, Defendant failed to inform the probation officer that he was no longer employed with the company, and he has not provided the probation officer with any other employment information; and (6) Defendant failed to notify the probation officer of his arrest on February 21, 2019.

         At the hearing, Defendant entered a plea of true to allegations 2-7, that Defendant shall refrain from any unlawful use of a controlled substance; Defendant shall report to the probation officer and shall submit a truthful and complete written report within the first five days of each month; Defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer; Defendant shall work regularly at a lawful occupation, unless excused by the probation officer for schooling, training, or other acceptable reasons; Defendant shall notify the probation officer at least ten days prior to any change in residence or employment; and Defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer.

         Defendant waived his right to allocute before the district judge and his right to object to the report and recommendation of this Court. The Court finds that Defendant has violated the terms of his supervised release.

         RECOMMENDATION

         Pursuant to the Sentencing Reform Act of 1984, and having considered the arguments presented at the July 15, 2019, hearing, the Court recommends that Defendant be committed to the custody of the Bureau of Prisons to be imprisoned for a term of ten (10) months, with one (1) year of supervised release to follow, to be served consecutively to any term of imprisonment Defendant may otherwise be serving.

         The Court further recommends that Defendant shall serve his sentence at Federal ...


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